December 24, 2004

Is it legal to deck the lights?

Recent ruling opens a Pandora's box

Can a condominium corporation prohibit Christmas lights on the exterior of
the buildings? The Supreme Court of Canada may say no, but a veteran Toronto
condominium lawyer believes the decision is wrong.

Last summer, I wrote about a landmark decision of the Supreme Court of
Canada, which ruled that sincere personal religious beliefs override the
terms of a condominium declaration.

The case originated at a luxury condominium in Montreal known as Place
Northcrest.

A group of Orthodox Jewish owners in the project erected temporary religious
huts, known as sukkahs, on their balconies, despite a prohibition in the
building declaration. During the nine-day festival of Sukkot, observant Jews
take their meals and conduct religious ceremonies in the sukkahs.

After the condominium corporation obtained an injunction prohibiting
construction of the religious huts, the owners fought back.

In the case of Syndicat
Northcrest v. Amselem, the Supreme Court ruled that if sincerely
held religious beliefs conflict with condominium rules, the rules must give
way to the religious beliefs and are subject to the charter rights and
freedoms of every Canadian.

The exterior of virtually all condominiums in Ontario including balconies,
roofs, and outside windows, walls and doors, are part of the common
elements. No individual owner has the right to attach anything to the common
elements unless the rules provide for it.

This prohibition includes satellite dishes, clotheslines, radio antennas,
and of course, Christmas lights and decorations.

Certainly, Christmas lights are part of the holiday tradition, but are they
dictated by a religious belief? If so, then anyone putting up lights on
condominium common elements might be protected by the Syndicat Northcrest
decision. If they're not part of a religious belief, condominium boards
would be justified in prohibiting them.

Toronto development lawyer Harry Herskowitz, of DelZotto Zorzi LLP, believes
that the Syndicat decision raises a host of problems for condominium
corporations, owners and lawyers.

In an impassioned critique of the case at a Law Society seminar last month,
Herskowitz explained his belief that the decision is wrong.

Condominium development lawyers, he says, have the unenviable task of
drafting documents that are clear, unambiguous and most of all, enforceable.
In his view, the Syndicat case has opened a "Pandora's box of potential
conflicts" between condominium corporations and their boards, on the one
hand, and, on the other, an endless succession of unit owners whose diverse
beliefs might impact future use of common elements.

Owners look to the declaration, rules and bylaws to preserve a uniform look
and maintain values. The Supreme Court, says Herskowitz, ignored the
legitimate interests of all the unit owners in having the building's luxury
style, design and aesthetic appearance maintained at all times.

Herskowitz also argues that when owners knowingly and freely buy into a
project with restrictions on the use of common elements, they have waived
their rights to complaint at a later date that their religious or other
beliefs have been infringed.

In the wake of the Syndicat decision, condominium residents will have
increasing difficulty relying on the enforceability of condominium rules if
they are subject to attack by individuals who don't like them.

For example, one condominium corporation is having difficulty enforcing a
prohibition on satellite dishes erected on the common elements. One unit
owner maintains that he needs the dish to get broadcasts of Baptist church
preachings, fundamental to his religious beliefs. The fact that he'll be
able to watch ESPN sports and the Playboy channel is just a lucky bonus.

Unless the rules violate a fundamental human right, says Herskowitz, the
interests of the collective owners to enforce and preserve the integrity of
those restrictions should prevail.

Even though I am a strong supporter of civil liberties and the Charter
rights of all Canadians, I must admit that Herskowitz has a good point. His
argument that the Syndicat case went too far is very compelling.

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Bob Aaron is a Toronto real estate lawyer. He can be reached by e-mail at bob@aaron.ca,
phone 416-364-9366 or fax 416-364-3818. Visit
http://www.aaron.ca

Bob Aaron is a Toronto real estate lawyer. He can be reached by email at bob@aaron.ca, phone 416-364-9366 or fax 416-364-3818.Visit the Toronto Star column archives at http://www.aaron.ca/columns for articles on this and other topics or his main webpage at www.aaron.ca.